Citation Nr: 18158602 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-63 076 DATE: December 18, 2018 REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1993 to November 1996. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which denied entitlement to a TDIU. The Veteran filed his notice of disagreement in July 2016. In August 2016, the Board remanded the issue of entitlement to a TDIU for issuance of a statement of the case. The statement of the case was issued in October 2016, and in December 2016 the Veteran perfected his appeal to the Board. A November 2018 statement of the case was issued with regard to claims for entitlement to an initial rating higher than 10 percent for hypertension and an earlier effective date than August 4, 2011 for the grant of service connection for hypertension. However, a substantive appeal has not yet been filed with regard to these claims, and they are therefore not before the Board at this time. TDIU The Veteran has asserted that his back disability, hypertension, and sleep apnea have rendered him unemployable. A TDIU is warranted where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, due to his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned on an extra-schedular basis by VA’s Director of Compensation Service when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16 (b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to VA’s Director of Compensation Service is so warranted for extra-schedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. “A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. In this case, the Veteran is service connected only for hypertension, evaluated as 10 percent disabling from August 4, 2011, thus the Veteran’s combined disability rating does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16 (a) for a TDIU. However, under 38 C.F.R. § 4.16 (b) all cases where the veteran is unable to secure or follow a substantially gainful occupation because of a service connected disability should be referred to the Director of Compensation Service. The Veteran’s VA 21-8940 form indicates the Veteran has 4 years of high school education, and became too disabled to work in July 2010, most recently working in construction as a chipper and as a janitor. An October 2011 VA examination report noted that the Veteran’s hypertension did not affect his ability to work. February 2012 post-service medical treatment records furnished by the Social Security Administration noted that the Veteran’s hypertension precludes him from work around dangerous equipment or unprotected heights. These records support the assertion that the Veteran’s service connected disability prevents him from obtaining and maintaining substantially gainful employment as his post-service work experience, education, and expertise would likely only qualify him for employment which requires working around dangerous equipment or in similarly limiting circumstances. While the October 2011 VA examiner concluded that the Veteran’s service connected hypertension did not affect his ability to work, the applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). While the evidence suggests that the Veteran’s service connected hypertension prevents him from obtaining and maintaining substantially gainful employment, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance, but must first remand the claim for referral to VA’s Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Thus, the RO should refer issue of entitlement to TDIU to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16 (b). The matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) to the Director of Compensation Service. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel